Leave to sue whether can be granted.

ORDER :- The interesting question, which may often come up for consideration and which is involved in this application, is whether the suit for recovery of the amount due on a mortgage of property situated outside the territorial jurisdiction of this Court, is a suit for land.

2. Appln. No.1974 of 1981 is by the plaintiff for leave to institute this suit on the allegation that as the title deeds were deposited at Madras, the part of cause of action arose within the local limits of this Hon'ble Court's ordinary original jurisdiction and that notwithstanding the property being outside the local limits, the suit is not for land. The application is laid under Cl.12 of the Letters Patent. The said provision reads as follows :-

12. Original jurisdiction as to suits-

And we do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description if, in the case of suits for land or other immovable property such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within such limits, except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Causes Court at Madras, in which the debt or damage, or value of the property sued for does not exceed one hundred rupees".

3. There is, of course, a direct authority of this Court in Nalum Lakshmi Kantham v. Krishnaswamy Mudaliar (1904 ILR 27 Mad 157). On the following facts that plaintiffs in their plaint, prayed inter alia, that certain lands the title deeds relating to which had been deposited with them by the defendants might be sold, and the proceeds applied to the payment of the debt due to plaintiffs by defendants, and that all the lands were situated outside the original jurisdiction of the High Court. Moore, J. held that the suit was one for land or other immovable property within the meaning of Art.12 of the Letters Patent, and the Court had no jurisdiction. This was simply followed by Bakewell, J.. in the Official Assignee of Madras v. T. C. Ramaswamy lyengar (1912) 23 Mad LJ 726, for the learned Judge has observed at page 727 as follows :-

"A suit to get rid of an incumbrance on land appears to me a suit for land equally with a suit to enforce or obtain a charge upon land see Nalum Lakshmi Kantham v. Krishnaswami Mudaliar (1904) ILR 27 Mad 157. Sundara Bai Sahiba v. Tirumal Row Sahib ((1909) ILR 33 Mad 331), since in each case the plaintiff claims an interest in the land and asks the Court to enforce his right; in the first case he asks for the entire interest in the land and in other cases for a partial interest only, and the former is therefore more clearly a suit for the land".

4. But I find there are substantial and sound grounds which refrain me from accepting the principle as laid down by the learned Judge. The foremost is in AIR 1950 FC 83 (Moolji Jaitha and Co. v. Khandesh Spinning and Weaving Mills Co. Ltd.) Kania, C. J. has ruled "that on a proper construction of the plaint the claim in respect of the Jalgaon lands was a claim by a principal against his agent in respect of the property acquired by the agent by the use of the principal's funds. He found that cl.19 of the Letters Patent permits the Court to apply the equitable principles of English Law on the original Side of the High Court in spite of Cl.12 of the Letters Patent. As under those principles, the Court can grant relief to a litigant in respect of lands situate outside the jurisdiction of the court against a party standing in fiduciary relationship to him, the Court had